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Hill Int'l, Inc. v. Opportunity Partners L.P.

Supreme Court of Delaware

July 2, 2015

HILL INTERNATIONAL, INC., DAVID L. RICHTER, CAMILLE S. ANDREWS, BRIAN W. CLYMER, ALAN S. FELLHEIMER, IRVIN E. RICHTER, STEVEN M. KRAMER and GARY F. MAZZUCCO, Defendants Below, Appellants,
v.
OPPORTUNITY PARTNERS L.P., Plaintiff Below, Appellee

Submitted: July 1, 2015.

Case Closed July 20, 2015.

Page 31

Court Below: Court of Chancery of the State of Delaware. C. A. No. 11025-VCL.

Stephen P. Lamb, Esquire (argued), Daniel A. Mason, Esquire, Matthew D. Stachel, Esquire, and Laura Bower Braunsberg, Esquire, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Wilmington, Delaware; Richard L. Renck, Esquire, and Oderah C. Nwaeze, Esquire, Duane Morris LLP, Wilmington, Delaware; Of Dana B. Klinges, Esquire, Duane Morris LLP, Philadelphia, Pennsylvania, for Appellants.

Carmella P. Keener, Esquire, and P. Bradford deLeeuw, Esquire, Rosenthal, Monhait & Goddess, P.A., Wilmington, Delaware; Of Carol S. Shahmoon, Esquire (argued), Shahmoon & Ellisen LLP, New York, New York, for Appellee.

Before VALIHURA, VAUGHN, and SEITZ, Justices.

OPINION

Page 32

VALIHURA, Justice:

I. INTRODUCTION

Defendants below, Appellants, Hill International, Inc. (" Hill" or the " Company" ), David L. Richter, Camille S. Andrews, Brian W. Clymer, Alan S. Fellheimer, Irvin E. Richter, Steven M. Kramer and Gary F. Mazzucco (collectively, the " Individual Defendants," and together with Hill, the " Company Defendants" ) seek review of Court of Chancery orders dated June 5, 2015 and June 16, 2015.

In its June 5, 2015 Order, the Court of Chancery enjoined Hill from conducting any business at its June 9, 2015 Annual Meeting, other than convening the meeting for the sole purpose of adjourning it for a minimum of 21 days, in order to permit plaintiff below, Appellee, Opportunity Partners L.P. (" Opportunity" ), to present certain items of business and director nominations at Hill's 2015 Annual Meeting. On June 16, 2015, the Court of Chancery entered the Order dated June 5, 2015 as a partial final judgment pursuant to Court of Chancery Rule 54(b).

This expedited appeal requires us to resolve a dispute over the proper interpretation of certain provisions of Articles II and III of Hill's Bylaws as Amended and Restated on November 12, 2007 (the " Bylaws" ). The sections of the Bylaws at issue, specifically language in Sections 2.2 and 3.3, concern the operative date for determining the time within which stockholders must give notice of any shareholder proposals or director nominees to be considered at Hill's upcoming annual meeting (the " Advance Notice Bylaws" ).

II. FACTUAL AND PROCEDURAL BACKGROUND

The facts relevant to our resolution of the legal issue on appeal are not in dispute.

Hill is a Delaware corporation headquartered in Philadelphia, Pennsylvania. Hill, one of the largest construction management firms in the United States, provides program, project and construction management, and construction claims and other consulting services to the buildings, transportation, environmental, energy and industrial markets. The Individual Defendants are all members of Hill's Board of Directors. Irvin E. Richter is the Chairman of the Board and David L. Richter is Hill's President and Chief Executive Officer.

Opportunity is an Ohio limited partnership that owns shares of Hill's common stock. Opportunity is an affiliate of Bulldog Investors, LLC (" Bulldog" ), a registered investment advisor that beneficially owns approximately 5.53% of Hill's common stock as indicated in its Schedule 13D filings. Bulldog's owners include Opportunity's two proposed nominees to Hill's Board of Directors: Phillip Goldstein and Andrew Dakos. According to Hill, Bulldog is a sophisticated activist stockholder who has been involved in 169 contests involving 139 entities since 1997.

On April 30, 2014, Hill publicly disclosed in its 2014 Definitive Proxy Statement filed with the Securities and Exchange Commission that it anticipated holding its 2015 Annual Meeting " on or about June 10, 2015." The proxy statement stated that stockholders who wished to submit a proposal for the 2015 Annual Meeting " must submit [their] proposal no earlier than March 15, 2015 and no later than April 15, 2015."

On April 13, 2015, Opportunity delivered a letter to Hill in which it gave notice of its intent to present two shareholder proposals for consideration and two nominees for election to the Board of Directors at Hill's

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2015 Annual Meeting (the " April 13 Letter" ).

On April 30, 2015, Hill filed its 2015 Definitive Proxy Statement with the Securities and Exchange Commission, and announced that the 2015 Annual Meeting would be held at 9:00 a.m. on Tuesday, June 9, 2015. This was the first time Hill disclosed the actual date of the 2015 Annual Meeting -- as opposed to an anticipated time frame.

On May 5, 2015, Hill asserted that Opportunity's April 13 Letter did not comply with the Bylaws because it did not contain information about the director nominees ...


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